justia.com | July 1, 2016
|Court: Vermont Supreme Court Docket: 2016 VT 71
||Opinion Date: June 24, 2016
|Areas of Law: Banking, Civil Procedure, Real Estate & Property Law
Plaintiff-lender Deutsche Bank National Trust Company (as trustee) appealed a superior court decision to grant defendant-borrower Kevin Pinette's motion to dismiss. The lender tried to foreclose on property of Pinette, but the superior court dismissed its claims on foreclosure, the unpaid balance on a promissory note, and a deficiency judgment on the ground that they were barred by claim preclusion, as lender had previously instituted an identical action against borrower in 2013, which had been dismissed for failure to prosecute. On appeal, the lender argued that because the 2013 action did not actually adjudge the enforceability of the note and mortgage, the dismissal did not have preclusive effect. Further, lender urged the Vermont Supreme Court to hold that in the mortgage foreclosure context, dismissals with prejudice did not bar subsequent actions based upon new defaults occurring after dismissal of the prior action. Finding no reversible error, the Supreme Court affirmed.
Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager
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